Emerging Litigation Podcast:

Wildfire Litigation – Building a Case and Establishing Liability with Ed Diab

Host: Tom Hagy
Guest: Ed Diab, Partner at Diab Chambers, California
Date: March 20, 2025

Episode Overview

This episode delves into the rapidly evolving landscape of wildfire litigation, focusing on the legal mechanisms attorneys use to hold utilities and other defendants accountable in the wake of devastating wildfires. Host Tom Hagy interviews seasoned litigator Ed Diab, whose practice centers on representing individuals as well as public entities in complex wildfire cases. Ed shares insights on legal strategies, current case updates, the role of technology, and the real-world challenges that define wildfire litigation in California and beyond.

Key Discussion Points & Insights

1. The Unrelenting Wildfire Crisis

• Wildfires Are No Longer Seasonal:
  "Now we say there is no [wildfire] season anymore. It's almost year round, unfortunately."
  — Ed Diab [05:43]
• Scope & Severity: Recent years have seen wildfires devastate wide swaths of California and other states, with increasing frequency and intensity, driven by climate change, human endeavors, and infrastructure issues.

2. Common Causes of Litigation-Related Wildfires

• Predominantly Utility Equipment:
  • California’s “big three” utilities—Pacific Gas & Electric (PG&E), Southern California Edison, and San Diego Gas & Electric—are most frequently involved in high-stakes litigation.
• Other Causes: Arson (often on the rise), lightning, campfires, and rare cases such as factory explosions or lumber mill accidents.
  "Unfortunately, I believe arson is on the rise. We saw a lot of that during the LA fires, which is horrendous and despicable. I think everyone can agree with that." — Ed Diab [06:21]

3. Establishing Liability: The Legal Playbook

• California’s Unique Legal Framework:

  • Inverse Condemnation:
    "There's a California constitutional section...that actually allows us to sue these utilities under a theory called inverse condemnation." — Ed Diab [05:57]
    This legal doctrine holds utilities strictly liable if their equipment, as designed and constructed, is involved in igniting a fire—even if negligence isn’t proven.
  • Eminent Domain Principles:
    Utilities given monopoly status are held to “a really high standard” of care; liability attaches even in the absence of direct fault if public property is damaged.

• Other Legal Theories:

  • Negligence: Standard duty-of-care arguments.
  • Public Entity Claims: Violations of health and safety codes, costs for emergency response, environmental restoration, trespass, and nuisance for cities and counties.
    "Negligence...that's the run of the mill stuff. Hey, you had a duty to do this. You didn't meet that duty. You caused problems." — Ed Diab [09:41]

4. Proving Causation: Investigation & Technology

• Rapid Expert Deployment:
  "It's really important to have experts on the ground right away...the evidence is changing as the fire burns."
  — Ed Diab [08:11]
  • Experts (often retired firefighters, ATF agents, etc.) deploy immediately, marking ground zero and tracking fire propagation.
• High-Tech Surveillance:
  "UCSD has a great program where they've got wildfire detection cameras all over the place now. So technology's helping." — Ed Diab [08:29]
  • Surveillance cameras, even from unrelated businesses, sometimes provide critical evidence (e.g., security footage capturing ignition events).
• Scientific Analysis: Electrical engineers, metallurgists, and others dissect the equipment failures, data logs, and cause/origin patterns.

5. Litigation Strategy & Typical Defenses

• Plaintiff Side:
  • Assemble multidisciplinary teams and build airtight liability narratives, often under tight protective orders to handle sensitive grid data.
• Defendant Side (Utilities):
  "They're flat out going to say, hey, prove that it started on our equipment." — Ed Diab [12:51]
  • Challenge the application of inverse condemnation.
  • Argue proper tree/vegetation management, unpredictable natural events, and appropriate policy decisions (e.g., safety shutoffs, grid reclosing devices).
  • Technical disputes on electrical engineering and grid management standards.

6. Recent Case Updates & High-Profile Incidents

• January 2025 LA Wildfires:
  "The world's eyes were turned to Los Angeles in early January when a series of fires broke out there... the Palisades... the Eaton fire area... completely decimated."
  — Ed Diab [17:00]
• Eaton Fire Litigation:
  • Approx. 100 cases filed by individuals, public entities, and insurers.
  • First hearing: March 17th, 2025.
  • Unique issue: Transmission towers (not local lines) involved, presenting both evidentiary and infrastructure challenges as grid reliability is balanced against evidence preservation.
  • "The judge in this case has been phenomenal in terms of trying to figure out how to balance these interests..." — Ed Diab [19:23]
• Palisades Fire:
  • A "rekindled" fire, likely centered on fire response rather than ignition apparatus. Potential legal focus on emergency response immunities.
• Other Investigations: The Hearst and Hughes fires in LA.

7. Types of Defendants

• Utilities dominate (90–95%), but cases exist against mills (mill fire), factories, and other property owners.
• “But I would say in terms of the litigation world, 90, 95%, probably you're talking about utilities.” — Ed Diab [20:44]

8. Plaintiff Firm Collaboration & Case Team Structure

• Ed Diab’s practice:
  • Small but specialized (three partners, two paralegals), collaborating closely with the national environmental law powerhouse Barron & Budd.
  • Represent over 100 public entities since 2015; often partner with city and county attorneys.
  • "So the two firms have worked on quite literally every single wildfire case dating back to the 2015 fires in California." — Ed Diab [22:37]

Notable Quotes & Memorable Moments

• "There is no [wildfire] season anymore. It's almost year round, unfortunately."
  — Ed Diab [05:43]
• "The state's grid depends on this energy. So you have Edison in court saying, hey, we've got to get the power back on again. Any judge sympathetic to that's reasonable. On the flip side, the judge is also looking at the plaintiffs and saying, look, we've got a responsibility to preserve this evidence, figure out what's going on."
  — Ed Diab [18:51]
• "Managing an electrical grid is not an easy task to be fair. And I try to always give both sides on this thing. I think they're trying to figure out, look, they don't want to be in a damned if they do, damned if they don't situation."
  — Ed Diab [13:49]
• "There's something jarring about just seeing blocks and blocks of streets that are just flat out leveled."
  — Ed Diab [16:58]

Timestamps for Important Segments

• 00:00–05:39: Introduction and context for wildfire litigation trends in North America
• 05:40–07:48: Most common causes of wildfires leading to litigation; unique position of California utilities
• 07:49–09:33: Investigation and establishing causation; on-the-ground experts and technological advances
• 09:34–10:38: Common claims and counts (inverse condemnation, negligence, public entity claims)
• 10:39–12:34: Main litigation challenges; complexities of data, utility responsibilities, and evidence discovery
• 12:35–15:21: Typical utility defenses and the evolving legal back-and-forth
• 16:42–19:23: Updates on major ongoing wildfire cases: Eaton, Palisades, Hearst, and Hughes
• 20:17–21:29: Discussion on defendant profiles beyond utilities
• 21:30–23:20: Practice overview — Diab Chambers’ collaboration with Barron & Budd and client relationships

Closing Thoughts

This episode offers an accessible yet intricate look at how lawyers build—and defend against—wildfire litigation. Ed Diab’s frontline experience underscores that with wildfires escalating in both scale and social impact, the law is both a sword and a shield for communities and institutions navigating these disasters. The stakes—legal, environmental, and human—continue to climb.

For further information or legal insights, contact Tom Hagy via information in the show notes.